The Law Offices of Robert Nadalin

H-1B Cap Season


The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a Master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5400 of these visas set aside for Singapore and 1400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants.

The CIS will begin accepting petitions for Fiscal Year (FY) 2009 H-1B visas from Tuesday, April 1, 2008. The soonest these visas can be used for work authorization will be October 1, 2008, which is the start of FY 2009. Last year, the 20,000 H-1B visas for persons who had obtained a Master’s or higher degree from a U.S. university was exhausted on April 30, 2007. The quota of 58,200 regular track H-1B visas was exhausted by the second day of the filing season. The regular track cases received during the first two days were subjected to a lottery system in order to fairly allocate the visas among the cases received before the cut-off.

While it is impossible to predict exactly when the FY2008 H-1B quotas will be exhausted, it is currently estimated that any cap-subject H-1B petition not received within the first two days of the filing season may be subject to the cap. Any employer contemplating sponsoring an employee for an H-1B visa within the next 18 months should open an H-1B case for the employee at this time if the company has not yet done so.

Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.

Move Made to Fix USCIS Security Clearance Delays

All persons who apply for citizenship or lawful permanent residence (green card status) are subjected to a fingerprint check as well as an FBI name check procedure. The fingerprint part of that process is normally resolved within 48 to 72 hours. The name check process, by contrast, can take anywhere from a few weeks to a few years to resolve. The delays in case processing caused by the name check procedure have led to great frustration on the part of applicants and their attorneys. USCIS and the FBI were successfully sued thousands of times for the unreasonable delays caused by the process. As many critics of the procedure pointed out, if an applicant is planning to commit harmful acts against the U.S., the government should not take multiple years to address a suspected threat to national security.

In order to reduce the administrative burdens caused by the litigation, USCIS has changed its policy for adjustment of status applications. Where an adjustment of status application is otherwise approvable and the FBI name check request has been pending form more than 180 days, the adjustment application shall be approved. If adverse information is obtained after the case is approved, USCIS may move to rescind the approval and initiate deportation proceedings.

The previous policy remains unchanged for naturalization cases. No naturalization case will be approved prior to the successful completion of the FBI name check process.

Michigan Driver’s License Law Revoked

In January, the State of Michigan passed a law providing that only U.S. citizens and lawful permanent residents could obtain driver’s licenses. The effect of that law was that non-citizen and non-LPR executives and engineers working at GM, Ford, Chrysler as well as international students attending the many universities located in Michigan were forbidden from obtaining driver’s licenses. The law became yet another example how the overzealous application of penalties aimed at discouraging illegal immigration may instead cause great harm to foreign persons who have complied with the laws of our nation. Fortunately, Michigan Governor Jennifer Granholm today signed into law a bill that will restore the right to obtain a driver’s license to all legal residents, including those here on temporary visas.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.